[2014] KEHC 1547 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 307 OF 2008

PETER KANITHI KIMUNYA..........................................APPELLANT

VERSUS

ADEN GUYO HARO....................................................RESPONDENT

J U D G M E N T

By a plaint dated 11th February 2004, the appellant herein Peter Kanithi Kimunya filed suit against the respondent Aden Guyo Haro before the Chief Magistrate’s Court at Milimani vide CMCC No. 3056 of 2004, claiming for general damages for injuries allegedly sustained by him arising from an alleged accident involving motor vehicle registration No. KAN 018W Mitsubishi Gallant. The appellant claimed that he was hit by the said motor vehicle belonging to the defendant/respondent when he was lawfully walking along the 1st Eastleigh Avenue in Nairobi on 29th January 2002.

He blamed the occurrence of the accident in question on the negligence of the respondent and particularized the following acts:

a) Driving too fast in the circumstances

b) Failing to exercise any or any sufficient care on the road

c) Failing to have any and or any sufficient regard to other road users

d) Failing to swerve, slow down stop or in any other way to do so manage the motor vehicle so as to avoid the accident.

He claimed that as a result of the aforesaid accident, he sustained serious injuries involving:

a) The head

b) Compound fracture of the right femur

c) Injury on the knees

The defendant/respondent filed his defence on 22nd April 2005 denying the occurrence of the accident, ownership of the alleged accident motor vehicle and attributed the occurrence of the accident, if at all it occurred, on the negligence or contributory negligence of the appellant, among others.

He particularized the appellant’s acts of own negligence and or contributory negligence as:-

a) Running across the road when it was not safe.

b) Failing to heed the presence of motor vehicle registration No. KAN 018W on the road.

c) Failing to take care of his own safety

d) Causing the subject accident

e) Failing to give way to the said motor vehicle

f) Crossing the road carelessly

g) Exposing himself to danger

h) Crossing the road in front of the motor vehicle KAN 018

He prayed for dismissal of the suit with costs.

By an application dated 3rd August, 2007, the defendant/respondent herein filed an application seeking to have the appellant’s suit dismissed for want of prosecution. The said application was however dismissed with costs on 25th September 2007 for non-attendance by the respondent to prosecute it. The suit was then fixed for hearing which commenced on 18th February 2008 before W. Mokaya Senior Resident Magistrate, (as she then was).

The appellant testified and called one other witness, the Dr. Okere who examined him and produced a medical report on the injuries he sustained in the accident. The record shows that the case proceeded to hearing from 10. 20 a.m. with the doctor’s evidence followed by the appellant testifying. In his testimony, the appellant told the court that he was crossing the road from the chief’s office to his house when he was hit by the motor vehicle from the side in Eastleigh and the driver took him to hospital at Kenyatta. He attempted to produce hospital case summary treatment notes form Kenyatta national Hospital but this was objected to by the respondent’s counsel who insisted that the documents had to be produced by the maker thereof. The documents were therefore marked for identification MF2.

The appellant further testified that he lost consciousness for 5 hours after being hit and later he reported the accident to the police station and was issued with a police abstract which was marked for identification MFI3. He identified the driver of the accident motor vehicle as being of Somali origin. He produced a search certificate to show the ownership of the motor vehicle as Exhibit 5 and P3 form was marked for identification as MFI4, production being objected to.

The appellant closed his case and the respondent too closed his case as the witness who was expected to testify did not attend court and the trial magistrate made it clear that she would not adjourn the matter to another date. The parties’ advocates then agreed to file written submissions and the matter was slated for mention on 5th March 2008.

On 4th March 2008, the appellant’s counsel filed an application by way of notice of motion dated 29th February 2008 seeking to have the hearing of the suit reopened and the court to stay any submissions and or judgment pending hearing and determination of the application.

In the said application, counsel contended that the appellant’s case was prematurely and erroneously closed by counsel newly admitted to the bar. Further, that counsel had no prior knowledge that the respondent’s lawyer had indicated they will object to documents not produced by their makers.

That it was only fair and just that the case be re-opened and the appellant be allowed to call witnesses to produce the police abstract and P3 form that had already been marked for identification.

That the mistakes of an advocate should not be visited upon an innocent litigant and finally, that no prejudice whatsoever would be caused to the respondent who will have a chance to cross-examine the said witnesses on the documents.

The application was brought under the provision of Sections 3, 3A, 63(c) of the Civil Procedure Act and Order L Rule 1 of the Civil Procedure Rules (the old provisions before the 2010 amendments) was supported by the affidavit sworn by Rumba Kinuthia Advocate on 29th February 2008.

Counsel for the appellant deponed that it was a junior counsel who was seized of the matter and that he was not aware that it was a requirement that the makers of the documents would be required hence, prematurely and erroneously closed the appellant’s case before the police abstract and P3 forms could be produced in evidence.

In addition, counsel deponed that the respondent would not be prejudiced as they would have an opportunity to cross examine the witnesses and that mistake of counsel should not be visited upon an innocent litigant. He further deponed that the application had been filed timeously.

The application was opposed by the respondent/defendant through a replying affidavit sworn by Regina Kitheka on 19th March 2008 and filed in court on the same date.

She deponed that she was the claims manager of the respondent/defendant’s insurers Kenindia Assurance Company Ltd. She rubbished the allegations by the appellant, and vehemently opposed the application for reopening of the suit for hearing which she contended would prejudice the defendant/respondent through delays and prayed for dismissal of the appellant’s application with costs.

The said application was heard on 27th March 2008 and by a ruling delivered on 28th March 2008 at 3. 30 pm, the Senior Resident Magistrate dismissed the same as lacking merit.

No appeal was preferred against the said ruling and order.

The matter was then mentioned on 4th April 2008 for submissions on which date the court set judgment for 13th May 2008. By judgment dated 13th May, 2008, the learned Senior Resident Magistrate dismissed the appellant’s suit with costs on the grounds that the appellant had not discharged the burden of proving his claim against the respondent on a balance of probability.

In dismissing the appellant’s case, the learned magistrate found that the only way the appellant could have proved the occurrence of the accident on the material date was through production of a police abstract which was not produced, (it was only marked for identification); and since the respondent had denied the occurrence of the said accident, and had put the appellant to strict proof of the occurrence of the accident.

As liability was not established, the appellant’s suit was dismissed with cots. She however found that had the appellant proved liability against the respondent, based on the injuries sustained by the appellant as shown by the medical report by Dr. Okere, Ksh. 180,000/- would have been reasonable compensation in the circumstances.

She further ordered that the appellant’s counsel be personally liable for costs of the suit.

Being dissatisfied with the judgment and decree dismissing the suit with costs, the appellant preferred the appeal herein setting out six grounds of appeal namely that:

1) The learned magistrate erred in fact and law by finding that the appellant had failed to prove that an accident occurred, and as such dismissed the appellant’s entire suit .

2) The learned magistrate erred in fact and law by finding that the appellant had failed to prove liability against the respondent by failing to produce police abstract while it was evident that an accident had occurred.

3) The learned magistrate erred in law and fact by disallowing the appellant an opportunity to re-open its case and call up evidence to assist in the appellant’s case, which evidence would in no way prejudice the respondent who would have had an equal opportunity to rebut.

4) The trial magistrate erred in fact and law by not allowing the appellant to produce the police abstract which was contrary to Section 68 and 69 of the Evidence Act.

5) The learned magistrate erred in fact and law by now allowing the appellant an opportunity to prosecute his case without prejudicing him.

6) The learned magistrate erred in fact and law by dismissing the appellant’s entire suit and in so doing, deciding that the appellant did not prove his case on a balance of probability as required in civil matters, whilst the plaintiff/appellant produced all relevant documents and proved his case.

He therefore prayed that the appeal herein be allowed and the judgment of 13th May 2008 be set aside or varied and the lower court be ordered to assess and award damages accruing to the appellant as a result of the injuries suffered from the accident together with costs of the appeal.

The appeal was admitted to hearing on 12th October 2012 by Hon. Lady Justice Mary Angawa and on 31st July 2014, directions were given by myself wherein the advocates for both parties agreed to file written submissions and provide highlights.

The appeal was heard on 18th September 2014. The appellant’s counsel did not attend court. Nonetheless, the date had been fixed by consent on 31st July 2014 for highlighting. The appellant’s submissions are on record filed on 25th August 2014 whereas the respondent filed his on 5th September 2013.

Counsel for the respondent, Miss Wangombe submitted in the highlights, supporting the judgment by the trial Magistrate. She averred that as the occurrence of the accident was denied by the respondent in his defence, it was incumbent upon the appellant to prove its occurrence. She submitted that as the appellant did not produce the marked police abstract, he had failed to prove the occurrence of the incident.

Counsel further submitted that the ruling dismissing the appellant’s application to reopen his case was delivered on 28th March 2008 yet no appeal was preferred against it. She pointed out that instead, the appellant had sneaked in his ground No. 3 an allegation pointing to challenge the learned Magistrate’s ruling which was never appealed against. She further submitted that allowing this appeal would give rise to reopening a Pandora’s box for every litigant to come to court complaining that since their advocates did not conduct the proceedings properly, then they should be allowed to be heard afresh.

She concluded that the appellant had failed to file a reply to defence which had alleged contributory negligence on the part of the appellant and that such failure was fatal to the appellant’s case and cited several authorities to support her contention. She prayed for dismissal of the appeal herein with costs.

I have carefully perused the record before me, and considered the grounds of appeal, submissions on record and submissions by counsel.

I am mindful of my duty as an appellate court which duty is grounded in Section 78 of the Civil Procedure Act to evaluate and consider the evidence and the law, and exercise as nearly as may be the powers and duties of the court of original jurisdiction and come to my own conclusion, but in doing so, I must given an allowance of the fact that I neither saw nor heard the witnesses as they testified. See Selle – Vs – Associated Motor boat Co [1968] EA 123. In addition, as the appellate court, I will only interfere with the lower court’s judgment if the same is founded on wrong principles of fact and or law as guided by the court of Appeal decision in Nkube – Vs – Nyamiro [1983] KLR 403 that

“A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”

Per Law JA Kneller & Hannox Ag JJA.

In the above cited decision, the court also held that the above position of non-interference with the trial court’s finding of fact notwithstanding, the appellate court is however not bound by the trial court’s finding of fact if it appears that either it failed to take into account particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.

In another decision by the Court of Appeal of Ndiritu _ Vs – Ropkoi & Another EALR 334 O’Kubasu, Githinji & Waki JJA, the Court held that the appellate court should be slow to differ with the trial court and should only do so with caution and only in cases where the findings of fact are based on no evidence, or a misapprehension of evidence, or where it is shown that the trial court acted on wrong principles of law in arriving at the findings he did. See also Mwangi & Another – Vs – Wambugu [1983] 2 KCA 100 where the above principle was restated.

Having considered the evidence before the trial magistrate as adduced by the appellant, and taking into account the grounds of appeal and submissions by counsel for the appellant in writing and orally in the respondent’s written submissions filed on 5th September, 2014, I am of the view that the following are the issues for determination in this appeal.

1) Whether there was an accident on or about 29th January 2012 involving the appellant and the respondent’s motor vehicle registration No. KAN 018W Mitsubishi Galant.

2) Whether the appellant proved his case on a balance of probability against the respondent.

3) Whether the appellant as per ground 3 of the memorandum of appeal was denied the opportunity to be heard when the trial magistrate dismissed the appellant’s application to re-open the suit after parties had closed their respective cases.

4) Whether failure to reply to defence by the appellant amounted to admission of allegations of contributory negligence.

5) Whether the learned trial magistrate was correct in dismissing the appellant’s suit with costs.

On issue No. 1, it is trite law that he who alleges must proof. In this case, the appellant alleged the occurrence of an accident involving him and the respondent’s motor vehicle in which he, the appellant alleged that he was seriously injured. He blamed the occurrence of the said accident on the negligence of the respondent.

The respondent denied the occurrence of the accident in question and or that he was to blame for its occurrence and the injuries allegedly sustained by the appellant. He put the appellant to strict proof of all the allegations contained in the plaint. Under Sections 107 and 108 of the Evidence Act, the person who alleges is under a duty to prove all allegations as contained his claim against the respondent on a balance of probability. As was held in the case of Kirugi & Another – Vs – Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held thus:

“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.”

It was therefore incumbent upon the appellant to prove the occurrence of the accident which he stated took place when he was alone. He did not produce a police abstract. In my view, a police abstract form or Form P10A is a critical document that would prove that the occurrence of the accident was reported to the police, although it does not prove the occurrence of an accident itself.

In addition, it is not just documentary evidence that can prove all facts of a case. It depends on the circumstances of each case. The appellant is the person who was knocked and he testified that he was the only person at the scene. There was no evidence to controvert what the appellant testified concerning the occurrence of the accident. Weighing the facts and evidence before the learned Magistrate, I find that she was in error in finding that in the absence of a police abstract, the appellant did not prove that an accident occurred. I am fortified on this point by the decision in HCCA 633 of 2002 Simon Mumo Malonza – Vs – British American Tobacco (K) Ltd where Hon. H. M. Okwengu J (as she then was), observed that although the appellant did not produce any police abstract report of the accident or a P3 form, it was apparent from the exhibits produced, i.e. the demand letter to the respondent, the doctor’s medical report, the personal accident claim form and the report of Mr. M.A. Sheikh, that the appellant was involved and or injured in a road accident. She further went ahead to state that,

“Although a police abstract report of the accident would have been appropriate to prove beyond doubt the identity of the motor cycle and the exact location of the accident, the absence of the police abstract report did not in any way negate the evidence adduced before the trial magistrate.”

I am enjoined to adopt and apply those principles in this appeal that the evidence as testified by the appellant was sufficient to prove on a balance of probabilities the occurrence of an accident and that the appellant was injured in an accident involving the motor vehicle. He was clear that he was able to see that it was a motor vehicle driven by a person of Somali origin. In demanding that the appellant should have produced a police abstract and P3 to prove occurrence of the accident, the learned Magistrate in my view, was applying the higher standard of proof normally applied in criminal cases “beyond reasonable doubt” and therefore came to a wrong finding that the occurrence of the accident was not proved.

The medical report produced by Dr. Okoth Kere confirmed the appellant’s injuries as pleaded and it also provided a history of how the appellant sustained the pleaded injuries as a pedestrian.

As I have stated earlier, a police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.

In the case of Thuranira Karauri – Vs – Agnes Ncheche, CA 192/96, the Court of Appeal had this to say concerning police abstracts:-

“A police abstract report cannot be accepted as a document which proves ownership of a motor vehicle. The memorandum contained on the reverse side of the abstract originates from the police clearly indicate that such abstracts give only the salient facts of the occurrence of an accident without purporting to be an active copy of a police report and the memorandum further states that the police cannot accept responsibility of the accuracy of the same ….”

Although the issue in the above case involved proof of ownership of a motor vehicle, in my view, the same principles apply to proving occurrence of an accident particularly when there is no evidence that the police upon receipt of the report of an accident ever visited the scene of accident to confirm the occurrence or report.

I am not persuaded by the 2 authorities as cited by the respondent that failure to produce a police abstract is fatal to an accident claim.

On the issue of whether failure to reopen the appellant’s case to produce a police abstract and P3 form by the learned Magistrate occasioned a miscarriage of justice, the ground of appeal fails for reasons that the record is clear that after closure of the plaintiff and defendant’s cases, the appellant herein filed a formal application seeking to re-open the proceedings and the trial court did, after hearing the parties, dismiss the application. No appeal was lodged challenging the said ruling or order dismissing that application and therefore for this court to entertain that ground is tantamount to granting orders through the backdoor. It cannot be raised at this stage as the appellant must have accepted that decision of the trial magistrate that is why he went ahead and submitted for judgment in their favour and the court did deliver a judgment based on the evidence adduced and submissions.

On the respondent’s contention that the appellant’s failure to file a defence to counter the respondent’s averments of contributory negligence had fatal implications on the appellant’s case, I hold that such submission lacks legal basis and the same is dismissed. Although the respondent heavily relied on Order 6 rule 9 of the old Civil Procedure Rules, which provides that:

“Subject to subrule 4, any allegation of facts made by a party in his pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial.”

A plain reaching of Order 6 rule 9(1) (then) reveals that an allegation in the pleading may be traversed expressly by the opposing party or there may be a joinder of issue under rule 10 thereof which joinder operates as a denial of the issue or issues. Rule 10 (1) and (2) provides that

“(1) if there is no reply to defence there is a joinder of issue on that defence

(2) Subject to subrule 3 (a) there is at the close of pleadings a joinder of issue on the pleadings last filed and (b) a party may in his pleading expressly join issue on the immediately preceding pleadings.”

Whereas it is true from the record that the plaintiff/appellant never filed any reply to defence to counter the allegations of contributory negligence against him, however, in the clear language of order 6 rule 10(1), there was a joinder of issues on the same. The appellant needed not to have expressly filed a subsequent pleading denying the negligent acts as contended by the respondent. The Court of Appeal in the case of Mt. Elgon Hardware – Vs – United Millers Ltd – KSM CA 19/96which is often quoted as an authority on the issue is distinguishable in that, in that case, the appellant/plaintiff did not in his plaint particularize the alleged acts of negligence, and the only particulars of contributory negligence pleaded was by the defendant/respondent. That is not the situation in this case where the plaintiff/appellant’s plaint set out particulars of negligence against the defendant/respondent. In a recent Court of Appeal decision of Joash M. Nyabicha & K.T.D.A. – Vs – Kipkebe Ltd & AG, KSM CA No. 302/2010 where a similar issue arose concerning failure by the plaintiff to file a reply to defence and the defendant had relied on the Mt. Elgon Hardware case, the court was emphatic that such failure was not fatal to the plaintiff’s case.

I therefore find that based on clear rules of the civil procedure and decided cases, the appellant’s failure to file a reply to defence could not in any way render his claim useless.

On issues No. 2 & 5 as to whether the appellant proved liability against the respondent on a balance of probabilities, and if so, whether the learned magistrate erred in dismissing the appellant’s suit with costs, I reiterate the law that he who alleges must proof. (See Section 107 and 108 of the Evidence Act). It was incumbent upon the appellant to prove the allegations leveled against the respondent as pleaded in his plaint, that the accident occurred due to the negligent acts particularized in his pleadings.

In his testimony before the trial court, he stated that on a date he could not recall, he was alone crossing the road in Eastleigh from the chief’s office to his house when he was hit by a motor vehicle which he had not seen before he started crossing. He was injured on the leg and was taken to Kenyatta National Hospital by a driver who hit him and later he reported the accident to the police station. In cross examination he stated that he was running from the road to the side that is when he was knocked. He further stated that he blamed the owner of the motor vehicle because he was off the road when he was hit. He recalled the accident occurred at 3. 00 p.m. Although the appellant’s age was not revealed in his evidence and neither did Dr. Okere disclose his age, in one of the medical reports where he was examined by Dr. R. P. Shah MB CH B ER CS at the request of the respondent as attached to the affidavit replying to an application seeking to dismiss the suit for want of prosecution sworn on 11th September 2007, it is clear that the appellant was as at 9th June 2006 aged 75 years and retired. He appeared before the doctor in the company of his grandson. This, in my view, explains why his evidence appeared very scanty. When questioned further, he disowned the doctor who had testified on his behalf and stated that he was examined on 18th February 2008. He further stated that he had treatment notes which were with his sister.

The defence did not call any evidence to controvert the above evidence of a 75 year old man. They only relied on the answers gathered in cross examination. After the court denied them an adjournment, they closed their defence case without calling any evidence.

The question is whether the above evidence stood the test of proving liability against the respondent. Section 108 of the Evidence Act Cap 80 Laws of Kenya is clear that

“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”

Consequently, the burden of proof under Section 107 of the said Evidence Act lay with the appellant to prove that the respondent was liable in negligence whether the case proceeded by way of a formal proof or defended. Comparing this case to that of Simon Mumo Malonza (Supra), where during the trial, the appellant was the only witness who testified and explained how he crashed when riding a motor bicycle from Suba to Migori and blamed his employer as the accident was caused by a mechanical defect, the trial Magistrate dismissed the claim on the ground that no liability had been established, the appellate court in dismissing his appeal concluded that the evidence adduced tended to prove that the accident was probably caused by the appellant’s own negligence.

In this case, having re-evaluated the evidence on record and considering the submissions by both counsels, I have come to the conclusion that the appellant did not discharge the burden of proving on a balance of probability, that the respondent was negligent in the matter he drove or managed the material motor vehicle.

It was clear that although the appellant pleaded several particulars of negligence against the respondent, his own testimony did not prove any of those particulars. First, is that he was running across the road and he never saw the motor vehicle before it knocked him. He did not state that he had checked the road to ensure that it was safe before starting to cross the road. He never stated at what speed the motor vehicle was being driven. He did not adduce any evidence on the geographical condition of the road at the scene of accident to demonstrate to court whether in the prevailing circumstances he was not enabled to see oncoming vehicles, whether it was at a corner or straight stretch. He never testified that the motor vehicle emerged suddenly without giving him any warning.

In my view, the evidence as adduced was devoid of proving liability on the part of the appellant against the respondent. In as much as his counsel submits that he was denied an opportunity to re-open his case and produce police abstract and P3 form, in my view, the above documents could not have helped him prove liability either. In any event, the P3 form marked for identification shows the appellant was reported to have been crossing the road when he was knocked by a motorist. He does not state how he was careful for his own safety when crossing the road.

I have examined the authorities relied on by the appellant’s counsel in his submissions on liability wherein he urged this court to be persuaded by the finding in the case of Mwangi & Another – Vs – Wambugu [1983] 2 KCA 100 cited in Ndiritu – Vs – Ropkoi EALR (205)1 that whereas the burden of proof lay with the party who alleges, however, also the evidential burden cast upon both parties to prove any particular fact which they desired the court to believe in its existence, concluding that both parties were liable for contributory negligence at the ratio of 50:50 on account that each party failed to exercise the reasonable degree of care and skill reasonably expected of a person who drives a vehicle on a public highway.

Whereas I agree with the principle espoused in the above case. The said case is distinguishable from the one before me. The Ndiritu – Vs - Ropkoi & Another case involved an accident involving a motorist and a motor cyclist and there was evidence on record of a collision between the motor vehicle and the motor cyclist. It was also on record that the defendant’s lorry ahead of the witness who was believed by the court was negotiating a corner to go downhill and was occupying the middle of the road shortly before the collision occurred. On the other hand, the court received evidence that the motor cyclist was trying to overtake the lorry when he got sandwiched between two lorries coming from the opposing side and the one he was attempting to overtake while going uphill.

The appellant herein did not testify that he was knocked when he was off or beside the road. He clearly stated he was running across the road when he was hit. What other evidence was required to support this kind of testimony to persuade the court to find in his favour? Could the police abstract or P3 form have lend any credence to his testimony? I find in the negative as it is clear that there being no eyewitness to this accident, the onus of proving how the accident occurred and how negligent the respondent was never shifted to the respondent and that is the purport of Section 107(1) of the Evidence Act which provides that

107 (1) “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

Similarly, if the defendant was alleging that it was the plaintif to blame for the occurrence of the accident, then it was upon him to prove that fact. In my view, Sections 109 and 112 of the Evidence Act are not inconsistent with Section 107 thereof but compliment the latter on the adage “he who asserts must prove”.

Although the respondent pleaded contributory negligence against the appellant, he did not testify to prove the same. Among the particulars of contributory negligence are that – running across the road when it was not safe to do so; failing to take care of his own safety; crossing the road carelessly; exposing himself to danger.

The appellant having candidly testified that he was running across the road when he was hit, and there being no evidence that the respondent was driving at an excessive speed in the circumstances, I find no valid basis for apportioning liability against the respondent, in as much as I appreciate the fact that determination of liability in road accidents cases is not a scientific affair as Lord Reid put more graphically in Stapley – Vs – Gypsum Mines Ltd (2) (1953) AC 663 at pg 681 that

“To determine what caused an accident from the point of new legal liability is a most difficult task. If there is any valid logical or scientific theory of …………. It is quite irrelevant in this connection ina court of law this question must be decided as a properly instructed and reasonable jury would decide it …”

“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not meant that the accident must be regarded as having been caused by the faults of all of items. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

As stated above, there were specific acts of negligence pleaded by both parties in their pleadings and the onus of proving the said allegations lay on both, on a balance of probabilities. However, as this was the appellant’s case, and as the respondent had no counterclaim against him, it was upon him to demonstrate to the court how negligent the respondent was in the manner he drove or managed the accident motor vehicle. If the appellant checked the road to ensure that it was safe before crossing and there being no motor vehicle on site before he embarked on crossing – which only came in cross examination, it is surprising that he was hit by a motor vehicle which he did not see or even hear its emergence.

In the Court of Appeal decision of Patrick Mutie Kamau & Another – Vs – Judy Wambui Ndurumo, the court held that pedestrians too owe a duty of care to other roader users to move with due care and follow the highway code. Clearly in this case, the accident was caused by the appellant’s failure to pay regard to his own safety and to run across the road when it was not safe to do so. It was not shown that the area where the appellant was knocked was a busy area or market area. No sketch of accident was produced to prove the point of impact.

In CA 608/2007 Julius Omollo Ochando & Joyce Atieno Muga – Vs – Samson Nyaga Kinyua, the Court of Appeal set aside the trial magistrate’s findings that where an accident occurs and it is not clear who was to blame then blame should be apportioned equally. In that case, a pedestrian was crossing Waiyaki Way, saw a bus coming from a distance and the vehicle which overtook the bus came and hit him while he was crossing the road. I agree with the learned Judge’s holding. In the instant case, there was evidence upon which a proper finding could be made as to who on a balance of probabilities, and even without the defence testifying was to blame.

There was therefore no need to assume that both parties were to blame in any way for the occurrence of the accident given the circumstances as stated by the appellant himself.

In the end, I find that the appellant has not established any error or principle or any exceptional circumstances that would justify the interference by this court with the trial magistrate’s decision dismissing his case, as the weight of the evidence adduced before the trial court was far much below the required standard on a balance of probabilities.

On quantum, although there is no specific ground challenging the quantum of damages that would have been awarded to appellant had he proved liability, save that in his prayers he seeks an assessment and award of damages.

First, the trial magistrate found that Sh. 180,000/- would have been adequate compensation for the appellant. In his submissions in the lower court, the appellant prayed for Ksh. 650,000/- general damages for injuries involving compound fracture of the right femur, serious injuries on the neck and injury on the knees.

He relied on several authorities of Rose Bulinda – Vs Peter Kinyanjui Gakuon & 5 Others NRB HCC 86/98, David Ngondi & 2 Others – Vs – Simon Njoroge & 3 Others NRB HCC 3359/87.

The respondent proposed Sh. 200,000/- general damages relying on 4 authorities wherein the courts awarded between 175,000 and 200,000 in similar cases and especially the case of Thomas Karanja Kamau – Vs – Target Guards Ltd & Anotherwhich involved injuries of fracture of right femur compound fracture of tibia and fibula, dislocation of the right ankle and other multiple soft tissue injuries.

I have considered all the submissions and authorities cited by both parties in the lower court and in this appeal. The case of Kemfro African Ltd T/a Meru Express Services Ltd [1976] sets out the principles to be applied by the appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge, i.e. the appellate court must be satisfied that the Judge in assessing the damages, took into account an irrelevant factor or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

The Court below made an award of Sh. 180,000/-. No reasons have been advanced to persuade this court to interfere with that award had the appellant proved his case against the respondent on liability, on a balance of probabilities. I therefore uphold the trial magistrate’s award of general damages and decline to disturb the same.

The upshot of all the above is that I uphold the trial magistrate’s decision dismissing the appellant’s suit in the lower court and order the appeal herein dismissed. I must comment here that the appellant’s suit in the lower court was casually handled by his advocates. There was no due diligence exhibited. It appears they did not even conduct any pre-trial briefings with their client and hence the reasons for the scanty testimony and the appellant disowning the doctor who came to testify on his behalf. Not even treatment notes were available with the appellant stating that they were with his sister. Going by his age – 75 years, it would have been prudent for his advocates to prepare him well for the hearing and even call the police to produce a sketch plan of the accident scene if any.

It is a case that was conducted without any preparations. On those grounds, I order that each party bear their own costs of this appeal and costs of the suit in the subordinate court.

Dated, signed and delivered at Nairobi this 28th Day of October, 2014.

R.E. ABURILI

JUDGE